Local inspection under CPC: commissioner reports are evidence, may be sought pre-trial, and can be appointed in injunction suits.

Order XXVI Rules 9 and 10 of the CPC permit local investigation when it is necessary to elucidate the dispute, and the commissioner's report forms part of the record as evidence; the text states that this is lawful collection of relevant material, not impermissible delegation of adjudicatory power. It also explains that an application for local inspection is not confined to any trial stage and may be entertained before trial if the report will assist resolution of the issues. The same power applies in injunction suits where inspection is relevant, including boundary or encroachment disputes, and the court remains the sole adjudicator.

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Issues: (i) Whether appointment of a Commissioner for local inspection amounts to impermissible collection of evidence. (ii) Whether an application for local inspection can be entertained before completion of the trial. (iii) Whether a Commissioner for local inspection can be appointed in a suit for injunction.

Issue (i): Whether appointment of a Commissioner for local inspection amounts to impermissible collection of evidence.

Analysis: Order XXVI Rules 9 and 10 of the Code of Civil Procedure, 1908 contemplate local investigation where it is requisite or proper for elucidating a matter in dispute. The Commissioner's report and the evidence taken by the Commissioner form part of the suit record and are evidence in the case. A local inspection is therefore a lawful means of securing relevant evidence and does not amount to an impermissible gathering of evidence outside the judicial process. What is impermissible is delegation of adjudicatory power, not the collection of material relevant to adjudication.

Conclusion: The objection that local inspection amounts to collection of evidence was rejected; appointment of a Commissioner for such purpose is permissible.

Issue (ii): Whether an application for local inspection can be entertained before completion of the trial.

Analysis: The power under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 is not stage-specific. The Court may appoint a Commissioner either before or after trial, depending on whether the report is needed to elucidate the dispute and whether it may reduce or avoid unnecessary oral evidence. The timing must be fixed with regard to the facts, pleadings, and the usefulness of the report in the pending controversy.

Conclusion: A pre-trial application for local inspection is maintainable and may be allowed where the report is necessary.

Issue (iii): Whether a Commissioner for local inspection can be appointed in a suit for injunction.

Analysis: The power to appoint a Commissioner is governed by the nature of the dispute and the need for a report to elucidate the matter in issue, not by the form of the suit. The Court held that Order XXVI Rule 9 of the Code of Civil Procedure, 1908 applies to suits of any nature, including injunction suits, where local inspection is relevant to deciding issues such as encroachment or boundary disputes.

Conclusion: A Commissioner can be appointed in a suit for injunction if the report is necessary for deciding the dispute.

Final Conclusion: The impugned order refusing local inspection was set aside, and the application for appointment of a surveyor was allowed with a direction to secure the report.

Ratio Decidendi: Under Order XXVI of the Code of Civil Procedure, 1908, a Commissioner may be appointed at any appropriate stage in any type of suit whenever a local investigation is necessary to elucidate the dispute, and the Commissioner's report is admissible evidence while adjudicatory power remains exclusively with the Court.

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